SUMMARY OF PREHEARING CONFERENCE,
AND ORDER GRANTING MOTION FOR ACCELERATED DECISION
AS TO LIABILITY
AND GRANTING REQUEST FOR A STAY OF PROCEEDINGS
AS TO PENALTY ISSUES

I. Background, Summary of Prehearing Conference, and Request for a Stay

This proceeding was initiated on June 30, 1998 pursuant to Section 9006 of the Resource
Conservation and Recovery Act (RCRA), alleging violations of regulatory requirements for
underground storage tanks (USTs). On February 22, 1999, Complainant moved for accelerated
decision as to both liability and penalty. On March 11, 1999, Respondent opposed the
Complainant's Motion and filed a Motion to Dismiss the Complaint. Complainant responded to
the Motion to Dismiss on March 26, 1999.

Complainant subsequently requested oral argument on its Motion for Accelerated
Decision and the request was granted by Order dated April 22, 1999.(1) The oral argument was
scheduled for May 18, 1999. On that date, Bernadette Rappold, Esquire, counsel for
Complainant, appeared along with John Michaud, Esquire, of EPA's Office of General Counsel.
Ashby Dyke, Esquire, and Major Robert Cottel, Esquire, appeared on behalf of Respondent.

Counsel for both parties requested a conference off the record with the undersigned
Presiding Judge prior to commencement of any oral argument. The request was granted. During
the conference, counsel for Respondent orally requested a stay of the proceedings as to the
penalty issues, pending an opinion by the Department of Justice's Office of Legal Counsel
("OLC") as to EPA's authority to impose fines against Federal facilities for violations of UST
requirements. On or about April 18, 1999, the Department of Defense had submitted a request to
OLC to render such an opinion. Respondent's counsel stated that such an opinion was expected
to be issued in July 1999. Counsel for Complainant concurred in the Respondent's motion for a
stay of proceedings pertaining to the penalty. The parties agreed that the OLC's opinion would
be binding on the parties as to the penalty issues in this proceeding. The parties agreed that there
are no genuine issues of material fact as to liability, except as to allegations in Count I with
respect to Tank Number 6. Respondent's counsel asserted that Respondent had complied with
the Compliance Order set forth in the Amended Complaint. Complainant's counsel indicated
that it had not yet verified such compliance.

The request for stay was granted during the conference,(2) and therefore the oral argument,
which would pertain only to penalty issues, was canceled.

Due to the stay of proceedings on the penalty issue, the only parts of this proceeding
which may be addressed at this time are the question of Respondent's liability for the alleged
violations, and the Compliance Order set forth in the Amended Complaint.

II. Complainant's Motion for Accelerated Decision

The Amended Complaint alleges two counts of violation of the Federal UST regulations
at 40 C.F.R. Part 280.(3) Count I alleges that USTs at Respondent's facility, designated as Tank
Numbers 5, 6, 7, 8 and 10, did not meet the performance standards of 40 C.F.R. § 280.20 for new
UST systems or the upgrading requirements of 40 C.F.R. § 280.21 for existing UST systems, and
were each closed and removed from the ground more than12 months after their respective dates
of last use, in violation of 40 C.F.R. § 280.70(c).(4) Count II alleges that Respondent reported to
the District of Columbia Department of Consumer and Regulatory Affairs that Respondent's
USTs designated Tank Numbers 4, 5, 6, 8, and 10 failed tank tightness testing, indicating that a
release may have occurred, but that Respondent did not report within 24 hours after the date of
the latest failed test, as required by 40 C.F.R. § 280.50.(5)

It its Answer to the Amended Complaint, Respondent admits all allegations of fact in
Count II, and admits the allegations of fact in Count I, except that Respondent denies that Tank
Number 6 was removed more than 12 months after its last use. In its Prehearing Exchange
Statement, dated January 22, 1999, Respondent asserts that Tank Number 6 was in use on a
continuous basis to fuel a back up generator, except for brief periods of repair, until weeks before
its removal. Respondent's Prehearing Exchange Exhibits 5 and 6, which are respectively 1995
and 1996 District of Columbia Department of Consumer and Regulatory Affairs registration
certificates for Respondent's USTs, indicate that Tank Number 6 was storing diesel fuel but that
Tanks Number 5, 7, 8 and 10 were temporarily out of service.

In its Response to Complainant's Motion for Accelerated Decision, Respondent asserts as
follows with regard to the issue of liability:

As it is Respondent's position that this enforcement action should be dismissed
for lack of jurisdiction to decide the legal issues presented, and because EPA has
no authority to impose fines against other federal agencies, Respondent's Motion
to Dismiss the First Amended Complaint is incorporated herein by reference as its
response to the liability issue of Complainant's Motion for Accelerated Decision.

While Respondent asserts a lack of jurisdiction with regard to the legal issues as to the
penalty, Respondent acknowledges jurisdiction with regard to compliance orders. In its Motion
to Dismiss, Respondent distinguishes EPA's authority to enforce from its authority to assess
fines, asserting that in regard to UST requirements, Section 6001(b) of RCRA authorizes the
former but not the latter. Section 6001(b) provides, in pertinent part, "The Administrator may
commence an administrative enforcement action against any department . . . of the Federal
Government pursuant to the enforcement authorities contained in this chapter." Respondent
states on Page 9 of its Motion to Dismiss that it "concedes that EPA may initiate actions to
require federal agencies to comply with UST regulations." Respondent's Answer to the
Amended Complaint states that Respondent has no objection to the Complainant's Compliance
Order.

A compliance order in regard to USTs is authorized only when EPA determines that "any
person is in violation of any requirement of this subchapter [IX of RCRA]." RCRA Section
9006(a). A determination of violation is linked to a compliance order, generally requiring the
person to come into compliance with the requirements it allegedly violated. Therefore, a
determination as to liability for the alleged violations, and a determination as to whether
Respondent has fully complied with the Compliance Order, should be made in order to determine
whether it is appropriate to impose the proposed Compliance Order.

As to whether Respondent has fully complied with the terms of the Compliance Order,
the statements of counsel at the prehearing conference and a review of the case file in this
proceeding do not establish that Respondent has fully complied.

As to the issue of liability for the alleged violations, Complainant may be entitled to an
accelerated decision in its favor only if no genuine issues of material fact exist as to liability and
it is entitled to judgment as a matter of law. 40 C.F.R. § 22.20(a). Respondent has raised a
material issue of fact with respect to the allegations in Count I as to Tank Number 6, but has not
raised any genuine issue of material fact with regard to the remaining issues of liability alleged in
the Amended Complaint.

It is noted that Complainant's proposed penalty calculation for Count I appears to
encompass multiple penalties, one for each tank. See, Amended Complaint pp. 9-10. This
appears to be consistent with following guidance on page 15 of the U.S. EPA Penalty Guidance
for Violations of UST Regulations, dated November 14, 1990: "[b]ased on the type of violation .
. ., penalties will be assessed on a per-tank basis if the specific requirement or violation is clearly
associated with one tank." The Amended Complaint refers to a singular "violation" in Count I.
While there are multiple penalties proposed for Count I, only one violation is alleged in Count I.
Therefore, the issue of whether Respondent permanently closed Tank Number 6 within 12
months of its last use is relevant only to the amount of penalty and the Compliance Order, and
not to the issue of liability. Tank Number 6 was removed, so there is no question that
Respondent is subject to the Compliance Order's requirement to comply with the applicable
regulations for permanent closure as to Tank Number 6 as well as to Tank Numbers 4, 5, 7, 8,
and 10.

Accordingly, Complainant is entitled to judgment as a matter of law that Respondent is
liable for a violation of 40 C.F.R. § 280.70(c) and a violation of 40 C.F.R. § 280.50 as alleged in
the Amended Complaint. Complainant's Motion for Accelerated Decision will be granted in
part, as to liability, and stayed in part, as to penalty issues. The Compliance Order proposed in
the Complaint will be incorporated herein.

ORDER

1. Respondent's request for a stay as to penalty issues in this proceeding is GRANTED.
This proceeding is stayed with respect to all penalty issues, including those raised in
Complainant's Motion for Accelerated Decision on the penalty and in Respondent's
Motion to Dismiss, until the date that the Department of Justice Office of Legal Counsel
issues its opinion as to EPA's authority to assess penalties against Federal facilities for
alleged violations of UST requirements.

2. Complainant's Motion for Accelerated Decision is GRANTED, in part, as to the issues
of Respondent's liability for both Counts I and II alleged in the Amended
Complaint.

3. Any party's objection to any portion of the summary of the prehearing conference herein
shall be filed within ten days of the date of service of this Order. The portion of this
Order summarizing the prehearing conference shall be presumed agreeable to both parties
fifteen days after the date of service shown below if no such objection is received.

4. To the extent Respondent has not already satisfied the requirements of the following
Compliance Order, Respondent shall, pursuant to the authority of Section 9006 of
RCRA, 42 U.S.C. § 6991e:

Within thirty (30) calendar days of the effective date of this Order:

Commence, and thereafter complete, the closure procedures for Tank Nos.4, 5, 6,
7, 8, and 10 at the Facility in accordance with 20 District of Columbia Municipal
Regulations Chapter 61;

Submit to the District of Columbia's Environmental Health Administration
("DCEHA") and EPA for review and comment a Standard Operating procedure
for UST Management ("UST Manual") at the Facility to ensure compliance by
Respondent with the District of Columbia's UST regulations. The UST Manual
shall include, at a minimum, procedures for complying with release detection,
closure, record keeping and notification requirements for all USTs at the Facility,
as well as procedures for the designation and training of personnel at the Facility
responsible for compliance with UST requirements. Within ten (10) days of the
Respondent's receipt of DCEHA's and EPA's comments on the UST Manual,
Respondent shall revise the UST Manual in accordance with DCEHA's and
EPA's comments and provide a copy of the revised UST Manual to DCEHA and
EPA. Respondent shall thereafter implement the provisions of the UST manual at
the Facility. Nothing in this Paragraph 2 shall in any way be construed to limit
Respondent's obligations to otherwise comply with the District of Columbia's
EPA-authorized UST regulations and other applicable law;

Within forty-five (45) calendar days of the effective date of this Compliance
Order, submit a report to EPA which demonstrates and certifies whether or not
Respondent is in compliance with the terms of this Compliance Order;

Any notice, report, certification, data presentation, or other document submitted
by Respondent pursuant to this Compliance Order which discusses, describes,
demonstrates, supports any findings or makes any representations concerning
Respondent's compliance or noncompliance with this Compliance Order shall be
certified by the commanding officer of the Facility;

The certification of the commanding officer of the Facility required above shall be
in the following form:

I certify under penalty of law that this document and all attachments were
prepared under my direction or supervision in accordance with a system designed
to assure that qualified personnel properly gather and evaluate the information
submitted. Based on my inquiry of the person or persons who manage the system,
or those persons directly responsible for gathering the information, the
information submitted is, to be the best of my knowledge and belief, true,
accurate, and complete, I am aware that there are significant penalties for
submitting false information, including the possibility of fine and imprisonment
for knowing violations.

Respondent is hereby notified that failure to comply with any of the terms of
this Compliance Order may subject it to imposition of a civil penalty up to
$27,500 for each day of continued noncompliance, pursuant to Section
9006(a)(3) of RCRA, 42 U.S.C. § 6991(a)(3).

1. Complainant subsequently requested that the oral argument in this case be consolidated
with the oral argument scheduled for the same date in another proceeding against the same
Respondent, U.S. Department of the Army, Walter Reed Medical Center in regard to its facility
located at the Forest Glen Annex in Silver Spring, Maryland, Docket number RCRA-9009-054.
The request was granted.

2. A stay of proceedings is a matter of discretion for the presiding judge. See, Landis v.
North American Co., 299 U.S. 248, 254-55 (1936); Unitex Chemical Corp., EPA Docket No.
TSCA-92-H-08, 1993 EPA ALJ LEXIS 146 (ALJ, Order Staying Proceedings, March 18,
1993)(granting a stay of one year or until decision by D.C. Circuit, whichever occurs first, where
D.C. Circuit had already scheduled briefs and oral argument, and decision would affect most or
all claims in the administrative proceeding); citing, General Motors Corp., EPA Docket No. II-TSCA-PCB-91-0245 (ALJ, Order Staying Proceedings, February 5, 1993).

3. The District of Columbia's UST program, set forth in the District of Columbia
Municipal Regulations, was not finally authorized by EPA until May 4, 1998, after the violations
alleged in the Amended Complaint occurred.

4. Section 280.70(c) provides that a UST temporarily closed more than 12 months must be
permanently closed, pursuant to requirements set forth in Sections 280.71 through 280.74, if it
does not meet the standards of Section 280.20 or 280.21.

5. Section 280.50 requires UST owners and operators to report to the implementing agency
within 24 hours in the event that monitoring results from a release detection method indicate that
a release may have occurred, unless the monitoring device is found defective, and additional
monitoring does not confirm the initial result.